The case for pre-mediation caucusing and a written risk analysis: an arranged marriage can be tempting.

This paper formed the basis of a presentation to the Law Institute, Victoria, on 11 November 2002. The motivation for this paper has come from the recent writings of Laurence Boulle/. J. H. Wade4. and Gegorio Billikopf-Eucina5 • In addition to the acumen contained in the writings of the three authors above, this paper is laced with assertions and anecdotal evidence derived from the authors' experience in a variety of negotiation and mediation settings.

Case comment: Cubillo and Gunner V The Commonwealth: a denial of the stolen generation?

In the recent Australian decision in Cubillo and Gunner v The Commonwealth ( ‘Cubillo 3’ ), the Full Court of the Federal Court dismissed an appeal by the Aboriginal claimants seeking damages for, inter alia, their removal from their families and detention at certain Aboriginal institutions. The removal and detention of the plaintiffs was held to be lawful in the earlier determination of O’Loughlin J because it was, inter alia, believed to be in the [then] child’s best interests and, as the plaintiffs bore the onus of proof, they had failed to show that they were taken without the consent of their parents/guardians. This decision was based upon the factual finding that ‘at the relevant times, there was no general policy in force in the Northern Territory supporting the indiscriminate removal and detention of part-Aboriginal children, irrespective of the personal circumstances of each child’. The Full Court did not comment on O’Loughlin J’s assertion that the policy of removing part-Aboriginal children, as asserted by the plaintiffs, could not be maintained. Moreover, the Full Court in fact joined O’Loughlin J in trying to distance their findings from the broader issue of the legal rights of members of the Stolen Generation, emphasising that they were only concerned with the particular circumstances of the two plaintiffs/appellants. This case comment is not aimed at evaluating the specific legal issues raised by the plaintiffs’ claims in this case or reviewing the history of the Stolen Generation, but rather seeks to examine O’Loughlin J’s comment as to the absence of a policy of indiscriminate removal and detention of part-Aboriginal children in a bid to determine the parameters intended by the court. It will be seen that, at its broadest, the statement is quite inflammatory and may be seen as a denial of the Stolen Generation. It will be submitted that this was not intended by the court. At its narrowest, the statement is merely an assertion that the particular plaintiffs failed to prove their cases. It will be submitted that, whilst this clearly was the view of the court, O’Loughlin J’s statement does have broader implications which, it will be contended, are not warranted.

Osborne v Estate of Osborne: an equitable agreement or a contract in law: merely a matter of nomenclature?

It has been more than lOO years since the leading case on mutual wills was handed down in Dufour v Pereira. Despite the passage of time. there continues to be a comparative dearth of modern authority), on this type of will. This area of the law was. however. recently considered by the Victorian Court of Appeal in Osborne. This case note evaluates Osborne in light of the relevant grounds of appeal. It is ultimately concluded that Osborne was very much a lost opportunity. The grounds of appeal raised many key issues pertaining to both the substantive law and evidential aspects of mutual wills. However the Court of Appeal did not take the opportunity to articulate clearly its views of the relevant law.

Family law in Australia: re Patrick and the matter of Child A

In Re Patrick, Guest J of the Family Court of Australia dealt with the issue of whether a gay sperm donor, known to the lesbian mother of the child, had a right under Australian law to regular contact with the child. Justice Guest held that the sperm donor was allowed contact with the child to the extent that this was in the child's best interests. His Honour did, however, find that due to the way in which particular provisions of Australia's Family Law Act 1975 (Cth) are drafted, a sperm donor cannot be regarded as the 'parent' of the child, and accordingly called for legislative reform to recognise the rights of known sperm donors wanting involvement with the child. In this article, we discuss the matter of Re Patrick, comparing it with the strikingly similar matter of Pursuer Against Defender in the Case of Child A, decided recently by Sheriff Laura Duncan in the Glasgow Sheriff Court. We will then outline a proposal to amend the Family Law Act 1975 so that sperm donors can apply for an order to be a 'parent' for the purposes of the law, and therefore have the same rights and responsibilities as any other parent. In response to the tragic ending to the matter of Re Patrick, we conclude by stressing the need for an educational programme to be established, so that lesbian women who are considering parenthood may do so in the knowledge that the sperm donor does have the status of 'father', and in some jurisdictions 'parent', rather than merely being a 'donor'.

Why all directors should be shareholders in the company: the case against "independence"

It is argued that the shift towards more 'independent' directors, in the wake of corporate collapses, is a fundamentally bad move, undermining the rights and powers of minority shareholders - entrenches a second-rate corporate governance model, separation of ownership and control, in company law - rather than suggest cosmetic reform in an attempt to address the problem, it is proposed that all directors must have significant interest in the company they serve - directors' self-interests and the best interests of the company become intertwined - this is a more effective way of tackling the problem of separation of ownership and control

The disunity of employment law and sentencing

This article discusses the lack of integration between criminal sanctions and employment deprivations (in the form of being dismissed from employment or disqualified from working in certain industries). Offenders who are employed in certain industries, especially the professions, often suffer a far greater net punishment upon being found guilty of a criminal offence than other offenders, thereby violating the principle of proportionality and the (related) principle of equality in the impact of sanctions. The reason that such a situation has developed is because criminal sanctions and employment deprivations have evolved from different streams of jurisprudence. This article argues that sentencers should impose a ‘net’ sanction for a criminal offence, thereby merging these streams of jurisprudence. This would require courts to be vested with the power to suspend or disqualify people from being employed in certain occupations. The legal analysis in this article focuses on case and statutory law in Australia, however, the same broad principles apply in all common law jurisdictions, including the UK. Hence, the reform proposals suggested in this article are relevant throughout the common law world.

The minimum moral content of law : a critique of Hart's descriptive theory of positive and natural law

Review of H.L.A. Hart's account of the minimum moral content of law - assesses its consistency with the methodology provided in his description of the focal meaning or central case of law - particular focus is Hart's consideration of the ultimate end of man - how difficulties faced by Hart's account of the minimum moral content of law can be overcome.

Who's afraid of the big bad fish? Rethinking what the law wishes to have

This article aims to re-evaluate the contribution of Stanley Fish to legal studies. In  "The Law  Wishes to Have a Formal existence", Fish accused the law of maintaining a formal,  positivistic self-image as principled; an activity rhat rises above processes of interpretation and of moral judgement. For this `antiformalist‘ Fish there is thus a false sense of self-sufficent closure to the law's discourse. More recently however: in discussing the practice of another profession (namely literary criticism) Fish demonstrates that the basis of aclivity per se is internal intelligibility - that is intelligibility  within a defined community. These apparent  inconsistencies are explored. Re-reading `The Law Wishes to Have a Formal Existence' one can discern errors in Fish's account of a key case and one can also find support for the  professionalism position that he subsequently articulates. It is therefore argued that  Fish's account of the general characteristics of professional practice, including legal, are of value. The implications of his account of professionalism in the law are, however, incompatible with the usual understanding of his more combative statements about the role of formal language and principle-based argument of the law.

Concise corporations law

This highly regarded exposition of Australia's complex corporations law has been rewritten to take account of changes to September 2000, including most notably the CLERP Act 1999 and the decisions in "Re Wakim and Hughes". Includes succinct, plain language explanations and case summaries.

Labour law

Second edition university text discussing the principles of labour law, first published in 1999. Provides a comprehensive discussion of such topics as the employment relationship, termination of employment, the federal system of labour regulation and legal regulation of trade unions. Revised edition has been updated to reflect recent changes in the common law and under the Workplace Relations Act 1996. Features case examples, summary questions and graded exercises for students. Includes table of cases, table of statutes and index. Author is a Barrister and Solicitor and a lecturer in the School of Law at Deakin University.

Corporations law text and essential cases

Corporations Law: Text and Essential Cases is designed as a student text but will be a useful book for practitioners seeking a good, current, concise book on corporations law. Author Julie Cassidy is a proven, successful author and has carefully ensured that the case extracts in this book are long enough to be useful to lawyers needing to cite case authorities in opinions and court submissions.

Developing an interactive writing tool for business law students

Students’ performance in assessment tasks requiring logical written answers to case study problems can be adversely affected by difficulties in constructing a full length, logical written argument that demonstrates understanding to the level expected. This paper describes a teaching and learning tool developed to assist students in constructing logical full-length answers to given problems, using individual understanding of underlying concepts and their application. The tool allows students to see their thoughts and reasoning written into full-length answers of different styles. Developed initially for Business law students, this Answer Styles tool has scope to assist students’ writing in many disciplines.

Corporations law : text and essential cases

Corporations Law: Text and Essential Cases is designed specifically to meet the needs of students undertaking one-semester, case-based courses in Corporations Law. The 13 chapters each contain extracts from the leading cases supported by commentary, further readings, and review questions.